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Marriage. Who Can Marry?. I. Substantive Requirements 1. GENDER – Almost uniform proh. on same sex marriages (Vt., Ha) 2. INCEST Uniform proh. marr to relatives by blood (consanguinity) or by marriage (affinity) but variation in range of proh. relationships

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who can marry
Who Can Marry?

I. Substantive Requirements

1. GENDER – Almost uniform proh. on

same sex marriages (Vt., Ha)

2. INCEST Uniform proh. marr to relatives by blood (consanguinity) or by marriage (affinity) but variation

in range of proh. relationships

3. BIGAMY – Uniform proh. on multiple marriages (at

the same time)

4. AGE – Uniform reg. marr to minors but range of reg

5. State of Mind Restrictions: Fraud and duress –

more discretion in application

  • Procedural/Formal Requirements

1. License

2. Ceremony

formal requirements
Formal Requirements
  • License
    • Provide information on age, relationship to spouse, etc.
    • Blood/other health tests
    • Waiting period
formal requirements cont d
Formal Requirements (cont’d)
  • Ceremony/Solemnization
    • Religious
    • Clerk
    • Judge
    • Proxy
    • Witnesses
majority rule carabetta
Majority Rule (Carabetta)

Principle of Validation

Failure to comply with formal requirements will not render marriage void as long as:

1) At least one of the parties has good faith belief marriage is valid

2) Parties have capacity (meet substantive requirements)

common law marriage
Common Law Marriage


  • Jurisdiction recognizes common law marriage
  • Agreement/present intent to be married
  • Public declaration “holding out”
  • Cohabitation – no minimum period
  • Capacity (substantive requirement defining capacity to marry)
    • No multiple marriages/bigamy
    • Age
    • Gender
    • Incest prohibition
    • No fraud or duress (sexual relations/childbearing)
maryland bar exam question
Maryland Bar Exam Question


1965 – Arnold & Bea have a valid marriage ceremony in Maryland

1975 – Arnold moves in with Caroline in D.C.

1980 – Bea & Darwin obtain license and have marriage ceremony before clerk in Maryland

1989 – Bea wins lottery and dies

md bar exam question cont d
Md. Bar Exam Question (cont’d)

Does Darwin have any right to receive the surviving spouse's share of Bea's estate?



(T & E: If no surviving spouse, Arabella and Barton share estate equally. If surviving spouse, spouse receives $15,000 plus ½ remaining estate)

Valid Ceremony?

_____ Duly authorized clerk, judge or rel. official?

_____ Does it matter if there were no blood tests or witnesses?

License – 4 requirements to obtain:

Waiting Period? 48 hours but can be waived if Maryland resident or in armed services.


1) Age 16 or 17

2) Age 15

3) Under age 15

4) No prohibited relationships
  • Gender
  • Fraud or Duress

So far so good, but:

7) Bigamy

(subsequent married void)

Note: No presumption of death in MD after lengthy absence but party cannot be criminally charged with bigamy if at the time of second marriage:

1) First spouse was absent for seven years, and

2) Do not know whether the first spouse is alive at the time of subsequent marriage

In 1992, Arnold returned to Maryland; he and Caroline established domicile in Laurel, Prince George's County, Maryland. While living in Laurel, Arnold purchased 75 acres of land, titled in his name only, in the vicinity of the Laurel Racetrack. Arnold died intestate in 1993. At the time of his death, the land was appraised at $750,000.

Does Caroline have any interest as surviving spouse in Arnold's estate?



common law marriage1
Common Law Marriage

1. Rule: Cannot be created in Maryland but Maryland will recognize common law marriage if valid where contracted.


a. ____________________

b. ____________________

c. ____________________

d. ____________________


putative spouse doctrine
Putative Spouse Doctrine


  • Innocent party/good faith belief
  • Ceremonial marriage
  • Marriage -void or voidable

All elements here?